[Cite as Williams v. Williams, 2013-Ohio-5861.]
COURT OF APPEALS TUSCARAWAS COUNTY, OHIO FIFTH APPELLATE DISTRICT
SUE E. WILLIAMS : JUDGES: : Hon. Sheila G. Farmer, P.J. Plaintiff-Appellee : Hon. Patricia A. Delaney, J. : Hon. Craig R. Baldwin, J. -vs- : : JOHN V. WILLIAMS : Case No. 2013 AP 07 0027 : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 2009 TM 10 0489
JUDGMENT: Affirmed
DATE OF JUDGMENT: December 18, 2013
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
ERICK L. BAUER JAMES J. ONG 204 West High Avenue 201 North Main Street New Philadelphia, OH 44663 Uhrichsville, OH 44683 Tuscarawas County, Case No. 2013 AP 07 0027 2
Farmer, P.J.
{¶1} On May 12, 1984, appellant, John Williams, and appellee, Sue Williams,
were married. On October 27, 2009, appellee filed a complaint for divorce. By agreed
judgment entry and decree of divorce filed June 14, 2011, the trial court granted the
parties a divorce and divided the parties' property. Pertinent to this appeal is the
disposition of the marital residence property and a vacant piece of property. Appellant
was to pay on the indebtedness of the properties for eight and one-half years. Appellee
was to have exclusive use of the marital residence property. At the expiration of the
term, the properties were to be sold or appellee could purchase appellant's interest
therein. The trial court retained jurisdiction over the issue of property division to ensure
equitableness.
{¶2} On August 28, 2012, appellant filed a motion for termination of obligation
to pay indebtedness against real estate due to appellee moving her boyfriend into the
marital residence. On November 14, 2012, appellant filed a motion for sale of vacant
land due to his having paid off the indebtedness thereon. A hearing on the motions was
held before a magistrate on February 15, 2013. By decision filed April 29, 2013, the
magistrate recommended that neither property should be sold. Appellant filed
objections. By judgment entry filed May 31, 2013, the trial court denied the objections
and approved and adopted the magistrate's decision.
{¶3} Appellant filed an appeal and this matter is now before this court for
consideration. Assignments of error are as follows: Tuscarawas County, Case No. 2013 AP 07 0027 3
I
{¶4} "THE TRIAL COURT ABUSED ITS DISCRETION IN OVERRULING
APPELLANT'S MOTION TO TERMINATE OBLIGATION TO PAY INDEBTEDNESS
AGAINST REAL ESTATE."
II
{¶5} "THE TRIAL COURT ABUSED ITS DISCRETION IN OVERRULING
APPELLANT'S MOTION FOR SALE OF VACANT GROUND."
I, II
{¶6} Appellant claims the trial court erred in denying his motion for termination
of obligation to pay indebtedness against real estate due to appellee moving her
boyfriend into the marital residence, and his motion for sale of vacant land due to his
having paid off the indebtedness thereon. We disagree.
{¶7} By agreed judgment entry and decree of divorce filed June 14, 2011,
appellant was to pay on the indebtedness of the marital residence property and the
vacant property for eight and one-half years. Appellee was to "exclusively use the
marital residence." Appellant argues appellee violated the exclusivity clause of the
agreement when she moved her boyfriend into the marital residence. As for the vacant
property, appellant argues he paid the indebtedness early and therefore the property
could be sold.
{¶8} In her decision filed April 29, 2013, the magistrate reviewed the agreed
judgment entry and stated the following at Finding of Fact No. 7: "***The Magistrate
finds that an award of exclusive use refers to use between the parties. Therefore, John
Williams may not reside in the home." The magistrate further found at Finding of Fact Tuscarawas County, Case No. 2013 AP 07 0027 4
No. 9: "The Magistrate further finds that John Williams' expenses for the marital
residence are the same whether Sue Williams resides there alone or with others.
However, her choice to move her boyfriend into the home, which her ex-husband is
paying for, is probably insensitive and tasteless."
{¶9} As for the vacant property, the magistrate found the following at Finding of
Fact No. 4:
Paragraph 7(h) states "For an eight and one-half (8 ½) year period,
commencing April 07, 2011, John Williams shall pay and hold Sue
Williams harmless from all real estate taxes assessed against the above
listed parcels." The Magistrate finds the parties planned to retain both the
marital residence and the vacant land for eight and a half (8 ½) years.
{¶10} The magistrate recommended that "[n]either the marital residence nor the
vacant land should be sold."
{¶11} In reviewing the magistrate's decision, the trial court noted a transcript of
the magistrate's hearing was not filed pursuant to Civ.R. 53(D)(3)(b)(iii). The trial court
determined: "***upon independent analysis and review of the Magistrate's Decision filed
April 29, 2013, the Findings of Fact and Conclusions of Law support the
Recommendations of the Magistrate and that the Magistrate's Decision should be
adopted in its entirety without modification." See, Judgment Entry filed May 31, 2013.
{¶12} In his May 8, 2013 written objections to the magistrate's decision,
appellant petitioned the trial court "to waive the requirement of the transmission of the Tuscarawas County, Case No. 2013 AP 07 0027 5
transcript" as the facts were uncontroverted and the magistrate misapplied the facts to
the law. We note a transcript of the magistrate's February 5, 2013 hearing was filed
after the fact on August 5, 2013. As explained by our brethren from the Sixth District in
Helmke v. Helmke, 6th Dist. Ottawa No. OT-04-029, 2005-Ohio-1388, ¶ 16:
The transcript is part of the record on appeal; however, "[a]
reviewing court cannot add matter to the record before it, which was not a
part of the trial court's proceedings, and then decide the appeal on the
basis of the new matter." State v. Ishmail (1978), 54 Ohio St.2d 402, 377
N.E.2d 500, paragraph one of the syllabus. As such, when a party
objecting to a magistrate's decision fails to provide the trial court with the
transcript of evidence, by which the court could make a finding
independent of the magistrate's, appellate review of the court's findings is
limited to whether the trial court abused its discretion in adopting the
magistrate's decision, and the appellate court is precluded from
considering the transcript of the hearing submitted with the appellate
record. State ex rel. Duncan v. Chippewa Twp. Trustees (1995), 73 Ohio
St.3d 728, 730, 654 N.E.2d 1254; High v. High (1993), 89 Ohio App.3d
424, 427, 624 N.E.2d 801; and Howard v. Howard, 6th Dist. No. L-02-
1371, 2003-Ohio-5683, ¶ 12-15. Therefore, this court could only review
the trial court's decision for an abuse of discretion, i.e., whether, in
adopting the magistrate's report, "the court's attitude [was] unreasonable,
arbitrary or unconscionable." State ex rel. Edwards v. Toledo City School Tuscarawas County, Case No. 2013 AP 07 0027 6
Dist. Bd. Of Edn.
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[Cite as Williams v. Williams, 2013-Ohio-5861.]
COURT OF APPEALS TUSCARAWAS COUNTY, OHIO FIFTH APPELLATE DISTRICT
SUE E. WILLIAMS : JUDGES: : Hon. Sheila G. Farmer, P.J. Plaintiff-Appellee : Hon. Patricia A. Delaney, J. : Hon. Craig R. Baldwin, J. -vs- : : JOHN V. WILLIAMS : Case No. 2013 AP 07 0027 : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 2009 TM 10 0489
JUDGMENT: Affirmed
DATE OF JUDGMENT: December 18, 2013
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
ERICK L. BAUER JAMES J. ONG 204 West High Avenue 201 North Main Street New Philadelphia, OH 44663 Uhrichsville, OH 44683 Tuscarawas County, Case No. 2013 AP 07 0027 2
Farmer, P.J.
{¶1} On May 12, 1984, appellant, John Williams, and appellee, Sue Williams,
were married. On October 27, 2009, appellee filed a complaint for divorce. By agreed
judgment entry and decree of divorce filed June 14, 2011, the trial court granted the
parties a divorce and divided the parties' property. Pertinent to this appeal is the
disposition of the marital residence property and a vacant piece of property. Appellant
was to pay on the indebtedness of the properties for eight and one-half years. Appellee
was to have exclusive use of the marital residence property. At the expiration of the
term, the properties were to be sold or appellee could purchase appellant's interest
therein. The trial court retained jurisdiction over the issue of property division to ensure
equitableness.
{¶2} On August 28, 2012, appellant filed a motion for termination of obligation
to pay indebtedness against real estate due to appellee moving her boyfriend into the
marital residence. On November 14, 2012, appellant filed a motion for sale of vacant
land due to his having paid off the indebtedness thereon. A hearing on the motions was
held before a magistrate on February 15, 2013. By decision filed April 29, 2013, the
magistrate recommended that neither property should be sold. Appellant filed
objections. By judgment entry filed May 31, 2013, the trial court denied the objections
and approved and adopted the magistrate's decision.
{¶3} Appellant filed an appeal and this matter is now before this court for
consideration. Assignments of error are as follows: Tuscarawas County, Case No. 2013 AP 07 0027 3
I
{¶4} "THE TRIAL COURT ABUSED ITS DISCRETION IN OVERRULING
APPELLANT'S MOTION TO TERMINATE OBLIGATION TO PAY INDEBTEDNESS
AGAINST REAL ESTATE."
II
{¶5} "THE TRIAL COURT ABUSED ITS DISCRETION IN OVERRULING
APPELLANT'S MOTION FOR SALE OF VACANT GROUND."
I, II
{¶6} Appellant claims the trial court erred in denying his motion for termination
of obligation to pay indebtedness against real estate due to appellee moving her
boyfriend into the marital residence, and his motion for sale of vacant land due to his
having paid off the indebtedness thereon. We disagree.
{¶7} By agreed judgment entry and decree of divorce filed June 14, 2011,
appellant was to pay on the indebtedness of the marital residence property and the
vacant property for eight and one-half years. Appellee was to "exclusively use the
marital residence." Appellant argues appellee violated the exclusivity clause of the
agreement when she moved her boyfriend into the marital residence. As for the vacant
property, appellant argues he paid the indebtedness early and therefore the property
could be sold.
{¶8} In her decision filed April 29, 2013, the magistrate reviewed the agreed
judgment entry and stated the following at Finding of Fact No. 7: "***The Magistrate
finds that an award of exclusive use refers to use between the parties. Therefore, John
Williams may not reside in the home." The magistrate further found at Finding of Fact Tuscarawas County, Case No. 2013 AP 07 0027 4
No. 9: "The Magistrate further finds that John Williams' expenses for the marital
residence are the same whether Sue Williams resides there alone or with others.
However, her choice to move her boyfriend into the home, which her ex-husband is
paying for, is probably insensitive and tasteless."
{¶9} As for the vacant property, the magistrate found the following at Finding of
Fact No. 4:
Paragraph 7(h) states "For an eight and one-half (8 ½) year period,
commencing April 07, 2011, John Williams shall pay and hold Sue
Williams harmless from all real estate taxes assessed against the above
listed parcels." The Magistrate finds the parties planned to retain both the
marital residence and the vacant land for eight and a half (8 ½) years.
{¶10} The magistrate recommended that "[n]either the marital residence nor the
vacant land should be sold."
{¶11} In reviewing the magistrate's decision, the trial court noted a transcript of
the magistrate's hearing was not filed pursuant to Civ.R. 53(D)(3)(b)(iii). The trial court
determined: "***upon independent analysis and review of the Magistrate's Decision filed
April 29, 2013, the Findings of Fact and Conclusions of Law support the
Recommendations of the Magistrate and that the Magistrate's Decision should be
adopted in its entirety without modification." See, Judgment Entry filed May 31, 2013.
{¶12} In his May 8, 2013 written objections to the magistrate's decision,
appellant petitioned the trial court "to waive the requirement of the transmission of the Tuscarawas County, Case No. 2013 AP 07 0027 5
transcript" as the facts were uncontroverted and the magistrate misapplied the facts to
the law. We note a transcript of the magistrate's February 5, 2013 hearing was filed
after the fact on August 5, 2013. As explained by our brethren from the Sixth District in
Helmke v. Helmke, 6th Dist. Ottawa No. OT-04-029, 2005-Ohio-1388, ¶ 16:
The transcript is part of the record on appeal; however, "[a]
reviewing court cannot add matter to the record before it, which was not a
part of the trial court's proceedings, and then decide the appeal on the
basis of the new matter." State v. Ishmail (1978), 54 Ohio St.2d 402, 377
N.E.2d 500, paragraph one of the syllabus. As such, when a party
objecting to a magistrate's decision fails to provide the trial court with the
transcript of evidence, by which the court could make a finding
independent of the magistrate's, appellate review of the court's findings is
limited to whether the trial court abused its discretion in adopting the
magistrate's decision, and the appellate court is precluded from
considering the transcript of the hearing submitted with the appellate
record. State ex rel. Duncan v. Chippewa Twp. Trustees (1995), 73 Ohio
St.3d 728, 730, 654 N.E.2d 1254; High v. High (1993), 89 Ohio App.3d
424, 427, 624 N.E.2d 801; and Howard v. Howard, 6th Dist. No. L-02-
1371, 2003-Ohio-5683, ¶ 12-15. Therefore, this court could only review
the trial court's decision for an abuse of discretion, i.e., whether, in
adopting the magistrate's report, "the court's attitude [was] unreasonable,
arbitrary or unconscionable." State ex rel. Edwards v. Toledo City School Tuscarawas County, Case No. 2013 AP 07 0027 6
Dist. Bd. Of Edn. (1995), 72 Ohio St.3d 106, 107, 647 N.E.2d 799; and
Proctor v. Proctor (1988), 48 Ohio App.3d 55, 63, 548 N.E.2d 287.
{¶13} It is perfectly logical that the exclusivity use "refers to use between the
parties." Therefore, we do not find the trial court's decision was unreasonable, arbitrary
or unconscionable on this issue.
{¶14} The agreed judgment entry at paragraphs 7(a), (b), (d), and (e) lists the
marital residence property and the vacant property and states: "[t]he real estate is
currently encumbered by a first mortgage to the First National Bank of Dennison Ohio"
and "[t]he real estate is currently encumbered by a home equity loan with Chase Bank."
Paragraph 7(f) provides for appellant to pay on the properties for eight and one-half
years commencing on April 7, 2011, and hold appellee harmless from the indebtedness.
Paragraph 7(k) specifically states: "[a]fter the expiration of the above listed eight and
one-half (8 ½) year period, the above listed real estate and marital residence shall be
sold."
{¶15} Pursuant to the agreed judgment entry, the parties planned to retain both
the marital residence and the vacant land for eight and one-half years. Appellant notes
the trial court retained jurisdiction over the issue of property division to ensure
equitableness, and argues equitableness calls for the vacant property to be sold since
he paid the indebtedness thereon early. Appellant was to pay on the indebtedness
which included a first mortgage and a home equity loan. Although appellant argues he
paid the indebtedness early on the vacant land, there is no evidence to support what Tuscarawas County, Case No. 2013 AP 07 0027 7
"indebtedness" he paid, i.e., the first mortgage or the home equity loan, and what
amount he paid vis-à-vis the values of the respective properties.
{¶16} Upon review, we do not find the trial court abused its discretion in
approving and adopting the magistrate's decision.
{¶17} Assignments of Error I and II are denied.
{¶18} The judgment of the Court of Common Pleas of Tuscarawas County, Ohio
is hereby affirmed.
By Farmer, P.J.
Delaney, J. and
Baldwin, J. concur.
_______________________________ Hon. Sheila G. Farmer
_______________________________ Hon. Patricia A. Delaney
_______________________________ Hon. Craig R. Baldwin
SGF/sg 1120 [Cite as Williams v. Williams, 2013-Ohio-5861.]
IN THE COURT OF APPEALS FOR TUSCARAWAS COUNTY, OHIO
FIFTH APPELLATE DISTRICT
SUE E. WILLIAMS : : Plaintiff-Appellee : : -vs- : JUDGMENT ENTRY : JOHN V. WILLIAMS : : Defendant-Appellant : CASE NO. 2013 AP 07 0027
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Tuscarawas County, Ohio is affirmed.
Costs to appellant.